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Higher Education Board Meeting Minutes

Friday, February 19, 2010
Central Conference Room
Maryland Higher Education Commission
839 Bestgate Road , Annapolis MD
9:00 a.m. Executive Session
9:30 a.m. Public Session

Hon. Robert Neall, Presiding

Chairman Neall called the meeting to order at approximately 9:35am. He welcomed new members Holly Fechner and Ben Alston.

Board members present: Robert R. Neall, Chair; Harriet E. Cooperman, Vice-Chair; Sheldon Steinbach, Board member, Holly Fechner, Board member, Benfred Alston, Board member

Board staff present: Erica Snipes, Executive Director; Joe Pokempner, Board Counsel; Denise Galante, Special Assistant.

1. Opening and welcome –Chairman Neall

Chairman Neall called the meeting to order at approximately 9:35am. He welcomed new members Holly Fechner and Ben Alston.

2. Approval of minutes of SHELRB meeting of October 29, 2009
(Motion to approve)

TThe Chair sought a motion to approve the minutes from the Board’s October meeting. Harriet Cooperman made the motion to approve, Holly Fechner seconded the motion. All Board members present voted to approve the minutes from October 29, 2009.

Chairman’s report
Chair Neall touched on the remedies issue currently facing the SHELRB, (ED Note: issue will be discussed in detail later in the meeting and reflected in these minutes at that point), stated there was nothing new to report, and that although he has communicated with Joe Bryce of the Governor’s Legislative Office regarding these issues, he wasn’t given any response from the Legislative office except to question whether the Department of Budget and Management and the Unions both know about this issue.

Executive Director’s report
A. LERA meetings are the last Wednesday of every month. If interested, board members and those present
at the meeting should give their contact information to Ms. Snipes to forward to LERA membership coordinator.

B. Monitoring any bills during the current legislative session that may affect the work of the SHELRB.

Executive Director Snipes noted that she follows any bill that has the potential to affect the work of the Board office, or the work of either of the labor Boards. So far, Ms. Snipes has been looking at two particular bills, one bill that codifies a current executive order that gives bargaining rights to certain day care providers in the state that receive state subsidies for any of their students. That bill gives the Board office the responsibility of holding representation elections for that day care unit—approximately 2600 employees throughout the state. The second bill that Ms. Snipes brought up was the Public School Labor Relations bill, which has been proposed in the past. The bill would give Maryland public school K-12 employees certain collective bargaining rights, and would create a Public School Labor Relations Board that would share an Executive Director with the State Labor Board and the Higher Education Labor Board. The cases in which the PSLRB would be involved, though, are limited to negotiations issues and negotiability disputes, nothing related to unfair labor practices. Ms. Snipes indicated that the biggest issue she has with any bill that adds work and administration to the office right now, is that there is not enough space to handle additional recordkeeping materials. Ms. Snipes indicated that she would continue to monitor these and other bills that may come up and advise the Board regarding their status at the next meeting.

Continuing Business

Regulations—final adoption “Procedures Governing Disclosure of Employee Information”.

COMAR 14.30.12.

Motion to submit to Division of State Documents as a final adoption, and a 2nd motion in agreement required from Board members at this meeting. Harriet Cooperman moved to go forward with final adoption of this regulation, Ben Alston seconded Ms. Cooperman’s motion.

Announcement of administrative determinations or Board decisions and orders, as appropriate:
None at this time.

Issues arising from the elections, negotiations, investigations, and cases pending before OAH:
Circuit Court Appeal of ULP 09-01 decision issued by the Board in August 2009. Case up before the Circuit Court in Wicomico County, arguments on 2/26/10. Board will be notified of outcome. Board had a brief discussion amongst itself to bring Ms. Fechner and Mr. Alston up to date on what this case was about, the parties involved, and the Board’s current 3-0 record in terms of appealed cases being affirmed or reversed. The Board members seemed hopeful that appellate court would affirm this appealed matter as well.

New Business proposed by members of the Board or staff
At this time, Assistant Attorney General Joe Pokempner, lead the Board members into a conversation regarding remedial portions of the Board’s statute and
regulations. Chair Neall had touched on this issue briefly in his report earlier as well. There was a discussion of the creation and history of the Higher
Education Labor Relations Board, particularly, as Board member Cooperman noted, that the original Board was quite proactive in researching and adopting
its first set of regulations.

Ms. Cooperman stated that the Board, in its original set of regulations, did adopt a section allowing for back pay and reinstatement as remedial
options when an unfair labor practice has been found. Mr. Pokempner noted that the State Labor Relations Board doesn’t have this section currently in its
regulations but that the Board has proposed it, which caused the Department of Budget and Management to oppose the proposal. Also, Mr. Pokempner
noted that the State Board has the issue of reinstatement and back pay as remedy before it in a current case.

Mr. Pokempner noted that the language in the Collective Bargaining Statute currently permits both Boards to investigate and take appropriate action
in response to unfair labor practices. New Board member Ben Alston noted that the existence of certain remedies were an argument of implied authority
based on the statutory language. Mr. Pokempner agreed, stating that the statute’s “take appropriate action” was the language that would be used to justify
the availability of certain remedies available to a complainant if an unfair labor practice was found to have been committed.

Mr. Pokempner brought up particular cases that require there to be specific language in an enabling statute for an agency to direct certain remedies
such as reinstatement or back pay. In particular, Mr. Pokempner brought up Gutwein v. Easton Publishing, dealing with the Maryland Human Relations
Commission, and two Attorney General Opinions that speak directly to this issue and require that there must be specific statutory support for remedies such
as back-pay or reinstatement. Mr. Pokempner also brought up a section from the ALR3d, specifically 85 ALR3rd 840, citing cases which provide that “take
appropriate action” does not allow for monetary damages.

Board member Cooperman noted that if there were no real remedy for an unfair labor practice that had resulted in someone being fired illegally, one of
the only remedies available to a complainant in this situation would be a wrongful discharge case filed against the state. Ms. Cooperman warned that a
wrongful discharge case against the state would be far more problematic than a case awarding back pay and reinstatement from our Board, since there are
many more damages available to a complainant in court on a wrongful discharge case.

Chair Neall stated that he had sent a package of information on this issue to Joe Bryce, from the Governor’s Office on Legislative Affairs, including a
memo from AAG Pokempner citing the Gutwein case as well as the Attorney General Opinions that deal with this issue. To date, the Chair knows that Mr.
Bryce has contacted DBM for its opinion on this. Chair Neall notes that there may not be many around in the legislature who remember the issues
surrounding the Gutwein case, but that we’ve done all we can do so far in working with this issue.

Joe Pokempner and Harriet Cooperman both agreed that there was nothing that particularly stood out in the legislative history of the Collective
Bargaining statute that would address why this issue of remedies was left out.

Chair Neall, Cooperman, and Alston all agreed that the section of the SHELRB regulations that deals with remedies should be withdrawn. This is
COMAR New Board member Fechner stated that she wants to read Joe Pokempner’s memo and all the cases he attached, before making
any changes.

The Board members continued to discuss and encourage strongly the removal of this portion of the regulations. Chair Neall shared his thought that independent of a good case to bring this problem to the attention of others, working with regulations or a possible change of statute, might not be successful. AAG Pokempner noted that the State Labor Relations Board had a case in front of it currently and were facing this issue of remedies directly. Chair Neall proposed that the Higher Education Board suspend activity on the remedy portion of its regulations until the upcoming State Labor Board meeting. Also, Chair Neall suggested that he send another letter to Joe Bryce, including a copy of our regulations, and indicating that in the absence of legislative change that would cure the problems with the remedy issue, the Higher Education Labor Relations Board would have to consider removal of the remedial portion of its regulations.

Meeting calendar

Proposed meeting calendar: Remainder of Calendar Year 2010

Sometime after session ends in April
Sometime in October or November

Chair Neall noted that the Board would possibly have to meet before this years’ legislative session concludes, depending on how this remedy situation works out.

Public comment.

Individuals may sign up to present comment on Board business, except matters filed as cases, and may present comments for up to 3 minutes. The Boards particularly caution speakers against commenting in any manner on cases to be heard by either Board after the conclusion of this meeting. Individuals who wish to speak to the proposed regulation should provide the Boards with written copies of their comments.

Chair Neall noted that there was no one present at the meeting, but asked that the record reflect that an invitation was made for members of the public to speak.

Harriet Cooperman moved for adjournment at approximately 11:10. Holly Fechner seconded the motion and all Board members were in favor.